PUBLIC LAW, PRIVATE PRACTICE: POLITICS, PROFIT, AND THE LEGAL PROFESSION IN NINETEENTH-CENTURY JAPAN

When American gunboats sailed up to a town near Tokyo (then called Edo) in 1853, they triggered a political crisis. The crisis turned military, and by 1867 samurai from several outlying domains had staged a coup d' etat. They spent the next decades vying among each other for control, but by the end of the century a handful of them had successfully consolidated their power.

Within this new "Meiji" oligarchy, nativists eager to rid the country of occidental influence quickly lost ground to others more eager to learn and to trade. Some of these internationalists chose to study law, and within a few decades had imposed a western-style legal system. They took most heavily from Germany, but incorporated traces of the French and Anglo-American systems as well. In turn, a new market for Western-style legal services emerged: as men in government transformed the legal system, men in the market began selling help to those who hoped to manipulate it – and it is their story that historian Darryl Flaherty promises to tell.

In part, the men in government adopted the new legal system to renegotiate the treaties that Western countries had demanded in 1858. Through these treaties they had imposed several conditions, the most humiliating of which were clauses that guaranteed extra-territorial jurisdiction. Before submitting their nationals to Japanese courts, Western countries wanted a recognizable judicial system. With its new occidental legal system, Japanese government leaders supplied that recognizability. Duly satisfied, the Western countries dropped the extra-territorial clauses.

Yet in explaining how the legal system came to be, Flaherty does not look in part to the treaties; he looks only to the treaties. "After 1868," explains he (p.24), "Meiji legal reformers sought, by reforming domestic law, to break the curse of international power politics as it was visited upon Japan in the treaties." And what a curse it was, notes Flaherty (p.121), for the U.S. was a world "where violent racism, vigilante justice in the form of the lynch mob, and ethnic cleansing of native peoples typified post-Civil War America."

In truth, the men in the new Japanese government had plenty of other reasons to adopt the legal system that they did: their decision to Westernize the statutes and courts was nothing if not over-determined. The earlier "Tokugawa" legal system had been chaotic in the extreme. The national government had maintained one set of statutes and courts, but the statutes offered only haphazard coverage, and the courts did not pretend to promise uniform recovery for torts, [*24] contractual breach, or even property infringement. Sometimes the statutes and courts offered coverage and recovery, and sometimes not. Beneath that national system the nearly 300 domains maintained their own sets of uncoordinated statutes and courts. Nothing about any of this promoted business investment. Even less did it offer procedural protection for anyone hapless enough to find himself accused of a crime.
Government leaders understood intuitively that economic growth benefited nearly everyone. To generate that growth, they wanted Japanese citizens to invest in business facilities, from small silk-reeling operations to massive cotton-spinning factories to railroads. They wanted Western engineers to explain the necessary technology. They wanted Western merchants to trade. In short, they wanted businessmen to buy raw cotton from India, to deliver it to local factories, to spin it into thread, to ship the spun thread over rail to the harbors, and to sell the thread into the U.S. market.

To facilitate these activities – wholly apart from any concern over Flaherty's "curse of international power politics" – the leaders needed a Western legal system. They needed a comprehensive corpus of private law. They needed a consistent, predictable, honest, and prompt set of courts. Western countries offered codes and courts on nearly a turnkey basis, and to those codes and courts the leaders turned.

This story of the late 19th-century Japanese legal transformation is oft told, but the tale of the legal services industry is not. It is this latter tale that Flaherty – in part – tells. In Chapter 1, he provides a careful account of some of the late-Tokugawa courts, and of the people who earned a living helping others navigate those courts. In Chapter 2, he recounts the lives of a few of the lawyers during the transitional early years of the new regime. In Chapters 3-5, he describes the way some lawyers tried to insinuate themselves into the new government.

Unfortunately, Flaherty did not put his heart into telling us about the legal services market. His is a not a book about people who invested their lives in selling legal services, whether successfully or unsuccessfully. Instead, his is mostly a book about former samurai who used the bar as a place from which to try to break into power. Flaherty (unfairly) accuses other scholars of focusing on the former samurai in the bar (page 13), but then does exactly that himself.

Perhaps a comparison would make the issue clear. It is as though a historian of the American bar wrote a book about William Jennings Bryan and Bryan-wannabes, but not about their contemporary Paul Cravath, not about Joseph Flom and Martin Lipton of the 1970s, and not about the tens of thousands of associates who tried to emulate Cravath, Flom, and Lipton. Even less is it as though a historian wrote about the hundreds of thousands of small-town lawyers who spent their lives drafting contracts, writing wills, litigating traffic accidents, and cultivating business ties at Rotary Club dinners. Bryan matters crucially to American political history, but hardly at all to the history of the bar. Cravath, Flom and Lipton may not much matter [*25] to American politics, but they revolutionized the high-end legal market.

His claims to the contrary notwithstanding, at root Flaherty has written a "great men" account of political history. Chapter after chapter, he marches us through the biographies of one politically prominent lawyer (many of them former samurai) after another. We learn what party they worked with, what political efforts they undertook, what they accomplished. There is nothing wrong with this, but it is what it is.

Alas, Flaherty embeds his account in a cloying allegiance to academic fads that at times distracts, and at other times simply irritates. Flaherty does not just record great men, for example. He also adds Sono Tel, whom he describes as the first woman in the bar. Apparently, she practiced law for twelve years "from 1874 to the early 1880s" (p.89) before decamping to the U.S. to join the international temperance movement.

Flaherty is determined to find in Sono's life a story of victimization. Never mind that she (in her autobiography – nearly the only source of information about her) never complains about professional mistreatment. Flaherty would have her traveling to the U.S. to escape sexual bias at the bar.

Flaherty then blames that bias for Sono's very obscurity. "Sono's notoriety may have been part of her downfall," (p.114) he tells us (though the only source for any claim to "notoriety" comes from her self-serving autobiography). Her "historical presence dimmed" (p.117), explains Flaherty, in part because she was a woman. After all, he declares (p.13), "her activities as a female legal advocate removed her from qualifying as part of a narrative of the advance of private law that came to focus on former-samurai men."

Sex has nothing to do with Sono's obscurity. Thousands of men sold legal services in the late 19th century too, and nothing survives about them. Even less would any information survive about a man who practiced law for twelve years and then quit. Sono did not disappear from history because she was a woman. She disappeared because she never did anything important.

To anyone in Japanese legal studies, perhaps the most puzzling part of Flaherty's book is the opening (p.1): "Until relatively recently, the legal and political past remained a largely unquestioned bastion of the modernization paradigm in Japanese history." A few pages later, Flaherty continues (p.6):

Legal histories of Japan have long paralleled the dominant modernization narratives of Japan's past. In these narratives, an enlightened and more advanced nineteenth-century West launched a country mired in timeless tradition on the path toward progress.

Of what history could Flaherty be thinking? He offers no footnotes, so we can only guess. But this is my field, and I cannot remember reading any history of the Japanese legal profession that followed an "unquestioned bastion" of any "modernization paradigm." Granted, I do not really know what [*26] Flaherty means by the phrase, though he obviously intends it as pejorative. If I suggest that the Prussian Civil Code more effectively promoted economic investment than Tokugawa law, does that throw me in with the "modernization paradigm"? In any event, Japanese-language legal history focuses on legal doctrine. Japanese-language social history is mostly Marxist. And other than Richard Rabinowitz's 1950s dissertation, an English-language history of the Japanese bar simply does not exist.

Flaherty tells the story of ambitious politicians and would-be politicians, many of them former samurai, who used positions in the early bar to maneuver themselves into politics. Some of them succeeded. Most of them failed. In this, Flaherty tells an interesting tale, but he inadvertently illustrates a rhetorical moral too: claim a bit less for one's accomplishments, and sometimes an author can leave his readers more satisfied than when he claims too much.